Czasopismo Prawno-Historyczne, 2011, z. 2
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Item Debata konstytucyjna w Strefowej Radzie Doradczej w 1947 roku.(Wydawnictwo Poznańskie sp. z o.o., 2011) Bożek, MichałIn February 1947, a Zonal Advisory Council with a seat in Hamburg was appointed in the British zone of postwar Germany. The Council worked for over two years and one of its main achievements was the organisation in the autumn of 1947 of a constitutional debate on the future of the German state. Its participants represented six German parties: the Christian-Democratic Union CDU, the Social Democratic Party of Germany SPD, the Free Democratic Party FDP, the Communist Party of Germany KPD, the Centre Party and the German Party. There were a number of projects proposed in the course of the debate. The project presented by the CDU did not gain universal recognition and was therefore reduced to being merely one of the concepts discussed in the course of the deliberations on the political regime of postwar Germany. The SDP, on the other hand, presented a project that it had been prepared already earlier and was presented as its official standpoint regarding the political structure of the German state after the war. Therefore, even if some time later the international situation changed and the basic concepts of the Party’s political strategy had to be revalued and a new project was to be drafted and submitted before the appointment of the Parliamentary Council, the official stance of the SDP contained in that project remained while the project itself constituted one of the elements of that political strategy.Item Weryfikacja narodowościowa ludności rodzimej i rehabilitacja tzw. „volksdeutschów” w latach 1945-1949.(Wydawnictwo Poznańskie sp. z o.o., 2011) Kacprzak, PawełThe end of the Second World War and resulting from it new boundaries of Poland brought to light a very acute problem that required an immediate resolution of demographic and social matters. The predominant issue was the expulsion of the Germans from the Polish territory that needed to be conducted pursuant to the agreements of the Potsdam Treaty. The problem that arose in connection with that concerned the native (called autochthonous) German population in Poland. Consequently, a procedure to verify the nationality was developed, with the expectation that it would result in the acquisition of numbers of new citizens that Poland really needed. Another way of increasing the Polish population was through a rehabilitation procedure offered to those who had earlier enlisted as German nationals. While in the case of the former group (native Germans) the opposition among the Polish society was not very strong, the situation looked much different in the case of the latter, as there was a strong conviction in the society that those who had earlier renounced Polish citizenship deserved some kind of punishment. The paper deals with both issues and points to their complexity. The winding course of the Polish state’s policy towards those two groups of population in the first years after the end of the Second World War was dominated by the primary goal of Poland’s government to build a nationalistic state, had practically destroyed the plans to acquire their members as conscious Polish citizens.Item Spór pomiędzy Sądem Najwyższym a Najwyższym Trybunałem Administracyjnym w przedmiocie wykładni art. 126 Konstytucji marcowej w świetle polityki wyznaniowej Drugiej Rzeczypospolitej.(Wydawnictwo Poznańskie sp. z o.o., 2011) Fastyn, ArkadiuszThe decision about of the political system to be implemented in Poland after it regained independence in 1918 was largely determined by the existing legal systems of the states that had earlier occupied Poland’s territories. The task before the Polish legislators was therefore to evaluate the existing laws and to decide how they were finally to be eflected in the March Constitution, of which Article 126 was of capital importance. That article provided, among other things, for reconciliation, before the first anniversary of the adoption of the Constitution, of the laws that were binding in the occupant states with the new legislation provided by the Constitution,. The Supreme Court and the Highest Administrative Court had different opinions as to the model according to which the harmonisation of the two was to be done. The Supreme Court’s stance was that the provisions of the Constitution had a direct influence on the binding legal order and therefore the regulations that were contradictory to or incompatible with its provisions were automatically ineffective. Thus the Constitution itself was to play the harmonising role in the whole process. The Highest Administrative Court, on the other hand, claimed that the discrepancies, if any. were to be resolved by relevant legislation that needed to be adopted. The model proposed by the Supreme Court prevailed. The conflict between the existing laws inherited from the occupant states and those included in the March Constitution was particularly acute in the sphere of religious policy and its regulations. The analysis of the judicial decisions arrived at pursuant to Article 126 shows that its provisions were construed in a manner that served the current political interests of the Polish state. Certain solutions of the former legal system regarding the state’s policy towards religion turned out to be very useful and in line with Poland’s policy once it had regained independence. They allowed the completion of goals that were concurrent with the policy of the former occupant states. Thus, paradoxically, once independent, the Polish state benefited from them. They served the Polish interests and were therefore frequently relied on, leading to the actual suspension of some of the principles of the March Constitution.Item Prawne zasady użytkowania pojazdów mechanicznych w Drugiej Rzeczypospolitej.(Wydawnictwo Poznańskie sp. z o.o., 2011) Pyter, MagdalenaThe paper is an attempt to present the first Polish legal regulations that were directly applicable to the motor industry. Such regulations were drafted and implemented as a binding law in Poland only in 1921. The period of twenty years that followed its implementation was a time of a continuous development of motor car law that had gradually taken the form of more detailed and specific legal provisions. It is worthy a note that by 1937 a uniform regulation covering all types of motor car as well as the motor traffic rules had been adopted. Obviously, the regulations had to develop, and they did, to reflect the technical developments and the progress and advancements in technology in particular, and the motor industry in general. And yet, the motor car law was not reduced to invoking the legal provisions only. Together with the development of legislation as such, it also addressed current matters and formulated other specific solutions, pertaining, for instance, to fiscal and revenue regulations, or to the obligation of motor car owners to make their vehicles to the military forces in the peace time, or to the state for defence purposes.Item Forma wydziedziczenia w prawie justyniańskim.(Wydawnictwo Poznańskie sp. z o.o., 2011) Kursa, Sławomir PatrycjuszThe analysis of the sources of the laws regulating the procedure of disinheritance in Justinian law suggests that those laws originated in pre-Justinian times. Justinian’s contribution to the regulation of the form in which disinheritance may be conducted was twofold: on the one hand, Justinian relaxed the existing legal requirements, and on the other, he replaced them with new requirements which, since his times on have been used to ensure better protection of the statutory heirs against unjust disinheritance. Justinian law, similarly to the old civil law and praetorian law required that the testator observed a very strict form if he wished to disinherit a statutory heir, to be reflected in the last will and testament, or the requirement of the disinheritance nominatim. Justinian advocated a far reaching flexibility of the strict regulations as to the placement of the disinheritance decision in the testament, and, in particular, he revoked the rigorous form of exheros esto that had been absolutely binding until 531. Like the old jurists, he also rejected the possibility of disinheriting with the use of accidentalia negotti. He upheld the requirement that disinheritance must apply to the entire estate and excluded the possibility of valid disinheritance without an appointment of another heir. Justinian added the requirement of naming all potential heirs, and the requirement of stating the reason for disinheritance if no legitim was stipulated.Item Umowa sprzedaży w prawie starożytnego Bliskiego Wschodu.(Wydawnictwo Poznańskie sp. z o.o., 2011) Fijałkowska, LenaThe paper aims to examine the evolution of the sale contract in the Ancient Near East from the third to the end of the first millennium BC. First, sale formularies from the third millennium are discussed; then the evolution of the Assyrian and Babylonian sale contract in the second and first millennia is presented, followed by a survey of sales from the Mesopotamian periphery. This analysis shows, on the one hand, a growing importance of writing, and, on the other hand, the declining role of symbolic gestures. It is also shown that several elements were common to contracts in the entire ancient Near East. Those are, among others, the “full price” clause, the formula stating that the buyer has been paid, as well as various provisions securing the irrevocability of the transaction. As for the latter, the existence of regional preferences should be noted. In Babylonia a sworn obligation of the parties was often considered sufficient, whereas in the periphery severe financial and/or penalties were added. It is also clear that sale always remained a cash transaction, that is to say, a real contract. If the price was to be credited, a debt note had to be drawn, whereas in proper sale contract, a fictitious payment would be noted; otherwise, the ownership would not pass.